Johnson v. Fong
Decision Date | 20 April 1944 |
Docket Number | 3399. |
Citation | 147 P.2d 884,62 Nev. 249 |
Parties | JOHNSON v. FONG et al. |
Court | Nevada Supreme Court |
Appeal from District Court, Eighth District, Clark County; George E Marshall, Judge.
Action for assault and battery by St. Patrick Johnson against Harry Lee Fong and others. From an order discharging writ of attachment, plaintiff appeals.
Reversed.
Morse & Graves, of Las Vegas, for appellant.
No appearance for respondents.
On May 15, 1943, the appellant commenced an action in the district court of Clark County, Nevada, asking damages of the defendants for an assault and battery alleged to have been committed upon the person of appellant on April 30, 1943. On the same date an affidavit of attachment and undertaking on attachment were filed in the office of the county clerk of said county, and a writ of attachment issued. On said 15th day of May, 1943, the said writ of attachment was executed by levying upon certain real and personal property belonging to the defendants. On May 18, 1943, one of the defendants, Joe La Due, filed a notice of motion, supported by his affidavit, giving notice of intention to move to discharge the said attachment. Pursuant to said notice of motion a hearing was had and a motion to dissolve the writ of attachment duly presented. The trial court at the time of the hearing of the said motion had before it for consideration the complaint, affidavit in support of the issuance of a writ of attachment, and the affidavit of Joe La Due heretofore referred to. On the 22nd day of May, 1943, the trial court entered its order discharging said attachment, and this appeal is from said order. Appellant filed an opening brief but none has been filed on behalf of respondents.
In the determination of this appeal we have the following questions to consider: (1) Does the complaint filed in the district court state facts sufficient to constitute a cause of action against the defendants?; and (2) is the affidavit of appellant sufficient to warrant the issuance of the writ of attachment?
The complaint, insofar as is material here, reads as follows:
In our opinion the allegations of Paragraphs V and VI are sufficient to state a cause of action against the defendants. In an action of this character not only the actual assailant but also all others who aided, abetted or encouraged the wrongdoer are liable with him to an injured party, whether they were present or not when the wrong was actually done. In the complaint it is alleged that respondent Smith was the agent of the other named defendants and at the time of making the alleged assault was acting within the scope of his authority and in the course of his employment. As a matter of law, the principal is liable for a tort which an agent commits in the course of his employment. This is so even though the principal be ignorant thereof. And a principal may be held liable to a third person where his agent, acting within the scope of his real or apparent authority, is guilty of an assault and battery. 2 Am.Jur. [62 Nev. 254] p. 280, sec. 361, note 3; Ray v. Dyer, Tex.Civ.App., 20 S.W.2d 328, at page 332; Loeb v. Kimmerle, 215 Cal. 143, 9 P.2d 199, 203; Deevy v. Tassi, Cal.App., 122 P.2d 942; Rand v. Butte Electric R. Co., 40 Mont. 398, 107 P. 87, 88, at page 91; Dornsife v. Ralston, 55 Or. 254, 106 P. 13, at page 15; Schafer v. Ostmann, 148 Mo.App. 644, 129 S.W. 63; Shear v. Woodrick, 181 Wis. 30, 193 N.W. 968.
In this case the plaintiff is entitled to relief for the alleged injuries inflicted, from such defendants as he can show united or co-operated in doing him the wrong. More v. Finger, 128 Cal. 313, 60 P. 933. In Herron v. Hughes, 25 Cal. 555, 560, it is said:
The above...
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